Johnny Bryan Hernandez v. the State of Texas ( 2023 )

Order filed February 9, 2023
In The
Eleventh Court of Appeals
__________
No. 11-21-00290-CR
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JOHNNY BRYAN HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 244th District Court
Ector County, Texas
Trial Court Cause No. C-20-0425-CR
ORDER
The jury convicted Appellant, Johnny Bryan Hernandez, of the offenses of
murder and aggravated assault with a deadly weapon. The jury assessed punishment
at imprisonment for fifty years and twenty years, respectively. The trial court
sentenced Appellant accordingly and ordered the sentences to run concurrently. We
abate the appeal.
Appellant’s court-appointed counsel has filed a motion to withdraw. The
motion is supported by a brief in which counsel professionally and conscientiously
examines the record and applicable law and concludes that this appeal is frivolous
and without merit. Counsel has provided Appellant with a copy of the brief, a copy
of the motion to withdraw, an explanatory letter, and a copy of the clerk’s record and
the reporter’s record. Counsel advised Appellant of his right to review the record
and file a response to counsel’s brief. Counsel also advised Appellant of his right to
file a petition for discretionary review with the clerk of the Texas Court of Criminal
Appeals seeking review by that court. See TEX. R. APP. P. 68. It appears that court-
appointed counsel has attempted to comply with the requirements of Anders v.
California, 386 U.S. 738 (1967); Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App.
2014); In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); and Stafford v.
State, 813 S.W.2d 503 (Tex. Crim. App. 1991).
Appellant has filed a pro se response to counsel’s Anders brief. Appellant
makes various assertions in his response. In addressing an Anders brief and a pro se
response, a court of appeals may only determine (1) that the appeal is wholly
frivolous and issue an opinion explaining that it has reviewed the record and finds
no reversible error or (2) that arguable grounds for appeal exist and remand the cause
to the trial court so that new counsel may be appointed to brief the issues. Schulman,
252 S.W.3d at 409; Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App.
2005).
Following the procedures outlined in Anders and Schulman, we have
independently reviewed the record, and we disagree with court-appointed counsel’s
conclusion that the appeal is frivolous. We are of the opinion that there are arguable
grounds for an appeal. In this regard, an appeal arising from a contested trial on
guilt/innocence is not readily amenable to disposition under Anders.
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Accordingly, we grant counsel’s motion to withdraw, abate this proceeding,
and remand the cause to the trial court for the appointment of new appellate counsel.
See Bledsoe, 178 S.W.3d at 826–27. We direct the trial court to appoint new counsel
to represent Appellant on appeal. The trial court shall furnish the name, address,
telephone number, and state bar number of new counsel in its order appointing new
counsel. The order shall be included in a supplemental clerk’s record, which shall
be filed with the clerk of this court on or before February 24, 2023. Appellant’s brief
is due to be filed in this court thirty days from the date of the trial court’s appointment
of new counsel. All other appellate deadlines shall be in accordance with the Texas
Rules of Appellate Procedure.
The motion to withdraw is granted; the appeal is abated; and the cause is
remanded to the trial court in accordance with this order.
PER CURIAM
February 9, 2023
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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